D. SUDHAKARversusSTATE OF A.P. & ORS.

                          [2016] 2 S.C.R. 861



                           D. SUDHAKAR                                       A
                                   v.
                       STATE OF A.P. & ORS.
          (Special Leave to Appeal (C) No. 19898 of 2014)
                           MARCH 28, 2016                                    B

         [MADAN B. LOKUR AND S. A. BOBDE, JJ.]
       Indian Ad111inistralive Service (Appointment by Selection)
Regulations, 1997: Petitioner Regional Transport Officer and
belonging to the Scheduled Caste community and also physically               c
handicapped (Ortho) - Seeking consideration of his appointment
to the !AS against Non State Civil Services Officers Quota - Not
selected - Grievance of petitioner that Act ()f 1995 u/s.33 provided
3% reservation for persons with disabilities - Petitioner approached
CAT challenging the selection of 15 candidates by the Selection
Committee for consideration for appoint111e11t in the !AS - Tribunal         D
held that the shortlisting process by Selection Commillee ll'as not at
all satisfactory and therefore short listing of 15 candidates was set
aside - Tribunal however held that there is no provision ji1r
reservation in the 1997 Regulations and 1954 Rules and the
petitioner had not made out any case for being short listed for
                                                                             E
selection - Writ petition - High Court dismissed writ petition holding
that in view of the fact that Supreme Court decision in Naticmal
Federation of the Blind and a111endment of office memo dated
29.12. 2005 is prospective .and that amendment cannot be
retrospective to the petitioner lo consider his case under 3%
reservation of persons with Disabilities Act - On appeal, held: The          F
decision of High Court was based on completely different grounds
than the decision of the Ti"ibunal - Injact reasons given by Tribunal
were not even remotely. adverted to by High Court - This petition
raises questions regarding interpretation of s.33 of PWD Act rlw
Regulations of 1997 and Rules of 1954, this petition also relates to
                                                                             G
interpretation of Office Memorandum 29.12.2005 and O.M.
3.12.2013 - Since all these issues are interlinked 11•ith the pending
Civil appeals, leave granted and appeal tagged with C.A. 7295112
 and CA 11895114 - Indian Administrative Service (Recruitment)
 Rules, 1954·- Service law - Persons with Disabilities (Equal
 Opportunities, Pr<iiection of Rig,hts m1d Full Participation) Act, 1.995.   H
              .                    861
862             SUPREME COURT REPORTS                           [2016] 2 S.C.R.


A           Union of India v. National Federation of the Blind
            (2013) 10 SCC 772: 2013 (9) SCR 1023; H.C. Sharma
            v. N.D.M.C 211 (2014) DLT 462; Municipal
            Corporation of Delhi v. Mano} Gupta 171 (2010) DLT
            600 - referred to.
B                                 Case Law Reference
            2013 (9) SCR 1023            referred to      Para2
            211 (2014) DLT 462           referred to      Para 16
            171 (2010) DLT 600           referred to      Para 16
         CIVIL APPELLATE JURISDICTION: Special Leave to Appeal
 c No. 19898 of2014.
            From the Judgment and Order dated 20.02.2014 in W.PNo. 18563
      of 2011 passed by the High Court of Judicature of Andhra Pradesh at
      Hyderabad.
 D          S.K. Rungta, Sr. Adv., Prashant Singh, Kanti Kumar, Ramesh war
      Prasad, Advs., for the Appellant.
             Ms. Prema Singh, Guntur Prabhakar, Advs., for the Respondents.
             The Judgment of the Court was delivered by:
             MADAN B. LO KUR, J. I. The petitioner was directly recruited
 E
      in the Group-I services as a Regional Transport Officer in 1990 and has
      been working as Joint Transport Commissioner since 2008. The petitioner
      belongs to the Scheduled Caste community and is physically handicapped
      (Ortho).
 F           2. The petitioner says that he has been unfairly treated for selection
      to the Indian Administrative Service (for short 'the lAS') and that he is
      entitled to the benefit of the quota for physically handicapped persons
      under S.C. category for selection under the Indian Administrative Service
      (Appointment by Selection) Regulations, 1997. For this, the petitioner
      places reliance on the decision of this Court in Union ofIndia v. National
 G    Federation ofthe Blind' and Section 33 of the Persons with Disabilities
      (Equal Opportunities, Protection of Rights and Full Participation) Act,
      1995.
           3. The background facts of the case indicate that the State of
      Andhra Pradesh had short listed the petitioner in 2002 for consideration
 H    1 (2013) 10   sec 772
                 D. SUDHAKAR v. STATE OF A.P.                                  863
                     [MADAN B. LOKUR, J.]

for appointment to the IAS against Non State Civil Services Officers            A
quota. The petitioner was interviewed but not selected. Even thereafter,
the petitioner was considered for appointment but was not short listed or
selected. The petitioner says that in spite of the reservation for persons
with disabilities as provided under Section 33 of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
                                                                                B
Participation) Act, 1995 (for short 'the PWD Act') which provides for
3% reservation for persons with disabilities in every establishment of
the appropriate Government, the petitioner was not selected in the IAS.
                               '
     · 4. At this stage, it may be mentioned that there are three modes of
recruitment to the IAS under the Indian Administrative Service
(Recruitment) Rules, 1954. These are (a) by direct recruitment; (b) by
                                                                                c
promotion of State Civil Services Officers; (c) by selection from amongst
Non State Civil Service Officers. The case of the petitioner falls in the
third category that is selection from amongst Non State Civil Services
Officers.
       5. When the petitioner was not short listed for selection for the        D
!AS in 2010, he approached the Central Administrative Tribunal,
Hyderabad Bench by filing O.A. No. 1297 of 2010 challenging the
selection of 15 candidates by the Selection Committee constituted for
this purpose that had recommended the 15 candidates to the Union Public
Service Commission for consideration for appointment in the !AS. The            E
further prayer of the petitioner was for a direction to include his name in
the short list sent by the State of Andhra Pradesh under the physically
handicapped quota and under S.C. category.
       6. The State of Andhra Pradesh and the Union of India both
contested the claim of the petitioner on merits and at Jaw. It was submitted    F
by the State of Andhra Pradesh and the Union oflndia thatthe concerned
Selection Committee had fully examined the records of the candidates
and thereafter did not shortlist the petitioner. As such it was contended
that the decision taken by the Committee could not be faulted. The State
ofAndhra Pradesh and the Union oflndia also contended that the Indian
Administrative Service (Appointment by Selection) Regulations, 1997             G
do not provide for rules ofreservation for including a candidate in the
zone of consideration. Therefore, apart from the contention that the
petitioner was not meritorio.us enough, the submission was that even at
 law the petitioner had not made out any case for interference by the
Tribunal.
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864             SUPREME COURT REPORTS                           [2016] 2 S.C.R.



A            7. The Tribunal by its Order dated 281h February, 2011 partly
      allowed the original application filed by the petitioner. The Tribunal held
      that the short listing process by the Selection Committee was not at all
      satisfactory and therefore the short listing of the 15 candidates was set
      aside as the selection was not fair.
B            8. With regard to the prayer of the petitioner that his name should
      be included in the short list, the Tribunal held that on an earlier occasion
      it had dealt with a somewhat similar issue in 0.A. No. 998 of2009. In
      that case the Tribunal had held that there was no provision for reservation
      in recruitment by promotion from the State Police to the Indian Police
      Service. It was held that the rationale for coming to that conclusion
c     holds good for recruitment by selection of Non State Civil Services
      Officers to the IAS. Accordingly, it was held that the petitioner had not
      made out any case for being short listed for selection.
             9. The Tribunal, in a somewhat oblique manner, upheld the
      contention of the State of Andhra Pradesh and the Union of India that
D     there is no provision for reservation in the Indian Administrative Service
      (Appointment by Selection) Regulations, 1997 or the Indian Administrative
      Service (Recruitment) Rules, 1954.
             I 0. Feeling aggrieved, the petitioner preferred Writ Petition No.
      18563 of 2011 in the 1ligh Court of Andhra Pradesh. By its judgment
 E    and order dated 20th February, 2014 the High Cou1t dismissed the writ
      petition (impugned).
              11. The High Court did not even advert to the Indian Administrative
      Service (Recruitment) Rules, 1954 or the Indian Administrative Service
      (Appointment by Selection) Regulations, 1997 but in a rather cryptic
 F    manner rejected the case set up by the petitioner. The High Court held
      as follows:-
             "'7. The facts are not in dispute. As on the date of committee
             constituted for selecting Non-Indian Administrative Service Cadre
             from various departments, the petitioner was eligible to be
 G           considered. The main contention of the learned counsel for the
             petitioner is that the case of the petitioner has to be considered
             under office memo. dated 3.12.13, wherein the persons with
             disabilities have to be given preference in 3% reservation on the
             total number of vacancies in the cadre strength. But, in view of
             the fact that the decision of the Hon'ble Supre111c Court and the
 H
                 D. SUDHAKAR v. STATE OF A.P.                                865
                     [MADAN B. LOKUR, J.]

      amendment of Office Memo dated 29.12.2005, is prospective,             A
      that amendment cannot be retrospective to the petitioner to consider
      his case under 3% reservation of persons with Disabilities Act.
      Therefore, we do not find any merit in this writ petition and it is
      liable to be dismissed."
       12. The decision of this Court referred to above is in the case of     B
National Federation of the Blind which dealt with the Office
Memorandum dated 29th December, 2005 and struck down paragraph
12 thereof.
       13. Subsequent to the decision of this Court, the Union of India
issued another Office Memorandum dated 3rd December, 2013 and                 c
inserted the following paragraph:-
"Reservation for persons with disabilities in Group A or Group B post
shall be computed on the basis of total numberofvacancies occurring in
direct recruitment quota in all the Group A post and Group B post
respectively, in the cadre."                                                  D
       14. A perusal of the impugned judgment and order indicates quite
clearly that the decision of the High Court was based on completely
different grounds than the decision of the Tribunal. In fact the reasons
given by the Tribunal were not even remotely adverted to by the High
Court.                                                                        E
       15. Be that as it may, feeling aggrieved by the decision rendered
by the High Court the petitioner is now before us. The primary contention
urged before us is that in view of the decision of this Court in National
Federation of the Bli11d read with Section 33 of the PWD Act, the
petitioner is entitled to the benefit of reservation for persons with
                                                                              F
disabilities in the matter of short listing for selection to the IAS.
       16. We may note at this stage that the Office Memorandum dated
3rd December, 2013 and more particularly the inserted paragraph
mentioned above came up for .consideration before the Delhi High Court
in H. C. Slwrnut v. N.D.M.c. ·The Delhi High Court took the view that
                                                                              G
the inserted paragraph was contrary to the conclusions and directions in
National Federatio11 oftlte Blind. Accordingly, the said paragraph was
struck down. ln coming to this conclusion, the High Court made a
reference to Municipal Corporalio11 II{ Ddlti v. Mmwj Gupltr' and
2
  211 (2014) DLT 462
'171 (2010) DLT600                                                            H
866             SUPREME COURT REPORTS                            (2016) 2 S.C.R.


A     the dismissal on 10th December, 2013 of the petition for special leave to
      appeal against the decision of the High Court in Manoj Guptu.
            17. Be that as it may, the decision of the High Court in H.C.
      Sharma came up for consideration before this Court and on 18th
      December, 2014 leave was granted to challenge the decision. The Civil
B     Appeal arising therefrom being C.A. No. 11895 of2014 is pending and
      has been tagged with C.A. No. 7295 of 2012 (State of Haryana v.
      Viklang Sangh).
             18. Under these circumstances, we are of the opinion that apart
      from the fact that this petition raises questions regarding the interpretation
c     of Section 33 of the PWD Act read with the Indian Administrative Service
      (Appointment by Selection) Regulations, 1997 and the Indian
      Administrative Service (Recruitment) Rules, 1954 this petition also relates
      to the interpretation of the Office Memorandum dated 29th December,
      2005 and the Office Memorandum dated 3rd December, 2013. Since all
      these issues are inter-linked with the pending Civil Appeals, we are of
D     the view that for a comprehensive decision in the matter and to settle
      the controversy, it will be more appropriate if leave is granted to the
      petitioner and this matter is tagged along with C.A. No. 7295 of 2012
      and C.A. No. 11895 of 2014.
           19. Accordingly, we grant leave and tag this appeal with
 E    C.A.No.7295 of2012 and C.A.No.11895 of2014.

      Devika Gujral                                                 Appeal allowed.